Vet Lawmaker Likely to Avoid Charges After Claim of Taking Photo with Enemy Corpse

Rep. Duncan Hunter, R-Calif., speaks to the media Jan. 10, 2017, in Washington, D.C.  Joe Raedle/Getty Images
Rep. Duncan Hunter, R-Calif., speaks to the media Jan. 10, 2017, in Washington, D.C. Joe Raedle/Getty Images

Rep. Duncan Hunter's claim that he posed for a photo with a dead enemy combatant while serving as a Marine Corps officer will probably not expose him to any charges under military or federal criminal law, three military law specialists said Tuesday.

Hunter, a California Republican, left the Marine Corps Reserve in 2017 as a major.

"What he's done is all kinds of stupid, but a criminal act? I think not," said Gary Solis, a former Marine Judge Advocate General and now an adjunct professor of military law at the U.S. Military Academy at West Point.

"For criminal wrongdoing, you've got to have more" than just posing for a photo with a corpse, such as degrading the body, Solis said. "In this case, [Hunter's] assertion of having done so is not necessarily a crime."

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"I don't think he's subject to the [Uniform Code of Military Justice]," agreed Eugene Fidell, who teaches military law at Yale University and served on then-Army Sgt. Bowe Bergdahl's defense team.

Fidell said it is his opinion that "the conduct [Hunter] has admitted to does not come under" the War Crimes Act, a federal criminal statute, although the behavior described "severely compromised his standing as a commissioned officer."

Geoffrey Corn, a professor at the South Texas College of Law in Houston, took a similar view on Hunter's statement, made last Saturday at a town hall meeting, that he took the photo with a dead enemy combatant while serving as a field artillery officer.

Hunter made the statement to show support for Navy SEAL Edward Gallagher, who is facing a general court-martial on numerous charges, including that he allegedly stabbed to death a wounded and captured enemy combatant in Iraq in 2017. One of the counts against Gallagher alleges that he took a photo of himself with the corpse.

At the town hall, Hunter referenced the Gallagher photo, saying, "A lot of us have done the exact same thing," according to reports by the Times of San Diego and the San Diego Union-Tribune.

"Eddie [Gallagher] did one bad thing that I'm guilty of too -- taking a picture of the body and saying something stupid," he said.

Hunter, who served two tours in Iraq and one in Afghanistan, said he had taken a photo "just like that when I was overseas," referring to the alleged Gallagher photo. He did not specify whether his photo was taken in Iraq or Afghanistan, but added that he did not text or post the image.

In commenting on Hunter's statement, Corn said in an email that the War Crimes Act "provides for federal criminal jurisdiction over certain war crimes but, in my opinion, while this [Hunter's photo] may have breached the customary obligation to treat the dead respectfully, I don't think it could be charged as a war crime under this statute for a number of somewhat complicated legal impediments."

A Marine Corps spokesman, Maj. Brian Block, said the service is aware of Hunter's remarks but offered no information on whether there would be a preliminary inquiry.

Hunter's California office did not immediately respond to phone calls or emails asking for comment. The lawmaker is already under federal criminal indictment on a range of fraud charges for allegedly diverting campaign funding for personal use, such as vacations in Italy. He faces a court hearing in July and possible trial in the fall.

The reactions to Hunter's remarks -- if they can be judged by postings to his Twitter account -- were mostly negative.

"Randomly admitting to war crimes while under indictment for stealing campaign funds. That's a great look my guy," said one. Another said, "Thank you for your service."

According to the Defense Department's Law of War Manual, "The respectful treatment of the dead is one of the oldest rules in the law of war. Enemy military dead must be protected from disrespectful or degrading acts."

It adds, "Posing with bodies for photographs or leaving a 'calling card' on a body are also inconsistent with the respectful treatment of the dead."

In an opinion piece for USA Today last week, Hunter wrote that Gallagher, Army Maj. Matt Golsteyn and others charged with war crimes deserved pardons from President Donald Trump.

He said the cases were "glaring examples of what happens when military prosecutors become more obsessed with career advancement and sensational headlines than executing the rule of law," adding, "A pardon by Trump is fully warranted."

In remarks to reporters at the White House last Friday before leaving on his Japan trip, Trump said, "Some of these soldiers are people that have fought hard and long. We teach them how to be great fighters and then, when they fight, sometimes they get really treated very unfairly.

"So we're going to take a look at it," the president said. "It's very possible that I'll let the trials go on, and I'll make my decision after."

-- Richard Sisk can be reached at Richard.Sisk@Military.com.

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